Lawyer for Torture Victim and Guantánamo Prisoner Abu Zubaydah Writes Powerful Op-Ed for TIME

Torture victim and "high-value detainee" Abu Zubaydah, in a photo taken at Guantánamo and included in the classified military files released by WikiLeaks in 2011. The photo has been superimposed on an image of Guantánamo, where Abu Zubaydah has been held for ten years. (Source: Anti-Media).

By Andy Worthington, September 19, 2016

On September 11, the U.S. remembered that it was 15 years since the dreadful terrorist attacks on New York and Washington, D.C., which, unfortunately, persuaded the Bush administration to abandon numerous crucial commitments to domestic and international laws and treaties, and to embark on a cruel and counter-productive "war on terror" that has destabilized Asia and the Middle East from Afghanistan to Iraq.

The "war on terror" also led to the creation of a show prison in the naval base at Guantánamo Bay, Cuba, where 61 men are still held, mostly without charge or trial, in defiance of accepted norms regarding imprisonment in countries that claim to respect the rule of law. Another post-9/11 novelty was a global program of kidnap and torture, complete with secret torture prisons.

For all these crimes, committed in response to the 9/11 attacks, no one has yet been held accountable, even though arbitrary detention is one hallmark of dictatorships, and another is the use of torture. Efforts to seek accountability have been blocked in the courts, or by government officials, while the most commendable effort to understand America’s post-9/11 horrors, the Senate Intelligence Committee’s report into the CIA torture program, shone a bright light on the program in December 2014, when the executive summary of the report was published, but still no one has been called to account.

Those who continue to evade justice include those who authorized the torture (George W. Bush, Dick Cheney and Donald Rumsfeld), those who justified it (the lawyers, including David Addington, Jim Haynes and John Yoo) and those who implemented it, like James Mitchell and Bruce Jessen, the former military psychologists who, without any experience of real-life interrogations, and for a reward of $81m, reverse-engineered their work on a program that trained U.S. personnel to resist torture if captured by a hostile enemy, and applied it to so-called "high-value detainees" seized in the "war on terror," with sickeningly brutal results that eviscerated any moral authority the U.S. claimed to uphold, whilst also yielding no valuable intelligence.

One of the most significant victims of the CIA’s torture program is Abu Zubaydah, for whom the torture program was developed, an alleged senior al-Qaeda operative who turned out to be no such thing, and was, instead, the gatekeeper for an independent training camp that was not aligned with al-Qaeda. Nevertheless, Abu Zubaydah was held in CIA "black sites" for four and a half years until his transfer to Guantánamo with 13 other "high-value detainees" in September 2006.

I wrote recently about the 14 "high-value detainees" on the 10th anniversary of their arrival at Guantánamo, and Abu Zubaydah recently had his case reviewed by a Periodic Review Board.

The PRBs were set up to review the cases of all the prisoners who had not already been approved for release by previous review processes, and are not facing trials, and, of 52 cases decided, the review boards have approved 33 men for release. This is a good — albeit shockingly overdue — result, helping President Obama work towards the closure of Guantánamo before he leaves office, as he initially promised when he first took office in January 2009. However, despite this there is, essentially, no prospect of Abu Zubaydah being approved for release.

This is not because of his behavior over the last ten years, which those compiling the summary for his PRB described as "a high level of cooperation with the staff," as I explained in an article following his review.

When the review board members turn down his request to be allowed to leave Guantánamo, as they undoubtedly will, they will mention that he has not shown sufficient remorse for his past actions, and does not have in place plans for his future that will assuage any security concerns — concerns that need to be addressed in a process that is most closely akin to the deliberations of parole boards.

However, they will also gloss over the fact that, in July 2002, when he was being tortured in a "black site" in Thailand, his torturers sent a cable to CIA headquarters noting that they "need[ed] to get reasonable assurances" that Abu Zubaydah would "remain in isolation and incommunicado for the remainder of his life."

That has not quite happened, but the reality is not all that different. Like the other HVDs, he spoke to representatives of the International Committee of the Red Cross after his arrival at Guantánamo, and that testimony was subsequently leaked. He also spoke at a review in Guantánamo in spring 2007, designed to make him eligible for a military commission trial — although he has never been put forward for a trial.

He also has attorneys, who are allowed to see him and to talk to him, although, crucially, every word uttered between Guantánamo prisoners and their attorneys is presumptively classified, and whereas the majority of the prisoners and their lawyers have some hope that notes of their exchanges will be unclassified by a Pentagon censorship team that reviews all notes submitted by lawyers regarding their conversations with their clients, every word the HVDs utter to their lawyers remains classified, maintaining the silence that, above all, prevents the men from talking about their torture.

Although a handful of media representatives recently saw Abu Zubaydah briefly via video link from Guantánamo in a secure military facility on the U.S. mainland where the review board members communicate with the prisoners and their representatives, he remained silenced, as journalists are not allowed to hear any of the prisoners speak in the PRB proceedings.

Below, I’m cross-posting an important op-ed from TIME that was written by Joseph Margulies, one of Abu Zubaydah’s attorneys, to mark the 9/11 anniversary. A professor of law and government at Cornell University, and the author of the 2013 book What Changed When Everything Changed: 9/11 and the Making of National Identity, Margulies was in the first wave of lawyers to recognize the significance of Guantánamo when it first opened, and to press for the prisoners to be given habeas corpus rights (rights that, when finally obtained, were all too swiftly removed again by cynical judges in the court of appeals).

Margulies ran through his client’s harrowing story, adding other details: how his co-counsel, Mark Denbeaux, was supposed to attend the PRB to speak on Abu Zubaydah’s behalf, but was unable to attend because of a medical emergency in his family. The government, however, refused to change the date of the hearing, so that, as Margulies put it, "[t]he silence continues."

He also spoke about not knowing how much Abu Zubaydah understands of his predicament, because of head wounds received long before his capture, the significance of which is permanently underplayed by the U.S. authorities. As Margulies described it, he "still has shrapnel lodged deep in his brain from when he was fighting the communists in Afghanistan, back when Ronald Reagan and other brave hearts thought it was a good and honorable thing to be a mujahid."

Above all, as Margulies described it, those in charge of the U.S. "seem to figure it is better that he be silenced and best that he be forgotten, at least until he dies. After all, that is the assurance we provided to his torturers."

The op-ed is below:

A Man Wrongly Tortured for 9/11 Remains in Guantánamo
By Joseph Margulies, TIME, September 8, 2016

It is one thing to be tortured, still another to be tortured and silenced, and something worse altogether to be tortured, silenced and forgotten. Like Dante’s Hell, Abu Zubaydah descends from one torment to another, each worse than the last.

Wednesday evening, Hilary Clinton and Donald Trump engaged in some election-year pot-banging about national security. Trump vowed to engorge the military and defeat ISIS with a secret plan. Clinton promised to stay the course set by President Obama. But before we settle into this permanently militarized future, we should recall the wreckage in our wake.

If there is a symbol of the U.S. torture program, he sits today in solitary confinement at a U.S. prison in Cuba. Zayn al Abidin Muhammad Husayn, known to the world as Abu Zubaydah, was the first person cast into a CIA black site and the first subjected to its "enhanced" interrogations.

He is the person for whom lawyers in the Bush Administration wrote the infamous torture memo, which freed CIA contractors to brutalize him with impunity. He is the only man in the world to have endured all of the authorized enhancements, though he also suffered many techniques — like "rectal rehydration" — that were never approved.

Why was the CIA so eager to torture this man? We know what some in the intelligence community believed at the time. He was a senior leader in al-Qaeda and a close associate of Osama bin Laden. He personally trained some of the 9/11 hijackers, and his bloodstained fingerprints were all over al Qaeda’s previous operations. That, at least, was the claim made by the highest officials in the Bush Administration, beginning with the president.

Since that time, of course, the rest of the world has learned what some of us have known for many years. In 2014, the Senate Select Committee on Intelligence completed what is by far the most comprehensive study of the CIA rendition and interrogation program. The Committee examined over six million pages of primary source material from the CIA.

From its meticulous review, the Committee concluded the Agency was, to put it gently, mistaken. Zubaydah was never a member of al-Qaeda, let alone one of its high ranking officers. He had no connection either to the attacks of 9/11 or to al Qaeda’s terror. This, of course, is precisely what Zubaydah told his torturers over and over, perhaps as he was strapped once more to that water-soaked board, stuffed again into that coffin built just for him or hung again from the hooks in the ceiling at the black site outside Bangkok.

In 2006, the CIA transferred Zubaydah to Guantánamo, where he remains. But unlike other CIA prisoners whose interrogations were "enhanced," Zubaydah has never been charged with a crime, either in a federal court or a military commission. In fact, he has never appeared in a court of any kind, whether military or civilian, kangaroo or conventional.

And if the United States has its way, he never will. As his torture began, his interrogators sought and received "assurances" that he would "remain in isolation and incommunicado for the remainder of his life." Assurances were immediately forthcoming: CIA headquarters responded that "all major players are in concurrence that [Abu Zubaydah] should remain incommunicado for the remainder of his life."

Apart from a select few — including the men who tortured him, a handful of other prisoners and government functionaries and his lawyers, myself included — no one in the world has heard him speak since 2002.

He was recently seen on video for a few minutes at Guantánamo’s parody of a parole hearing. The notion of a parole hearing for a person who has never been convicted is an oxymoron, but nothing about Guantánamo can be likened to legal forms. And there would be no more than this "fleeting glimpse." Zubaydah was not allowed to speak, lest the world might listen.

Worse, my co-counsel Mark Denbeaux, a law professor at Seton Hall, had planned to attend the proceeding to speak on Zubaydah’s behalf. If Zayn cannot speak, at least we might speak for him. But at the last minute, Mark had to cancel his flight to be at his wife’s bedside as she went through emergency surgery. We pleaded to set the hearing back a few days. The government was unmoved. The silence continues.

We have no illusion that Abu Zubaydah will be cleared by this Alice-in-Wonderland tribunal. The unbridgeable gulf between patriotic myth and tortured reality embarrasses the United States, which has never been good at atoning for its mistakes — at least, not so long as they can still speak.

We have tried to impart all this to our client, but we can never be sure how much he understands. He still has shrapnel lodged deep in his brain from when he was fighting the communists in Afghanistan, back when Ronald Reagan and other brave hearts thought it was a good and honorable thing to be a mujahid, whom Reagan repeatedly described as "Afghanistan’s freedom fighters." And of course, Zubaydah’s mental and physical state suffered a great deal at the hands of the CIA.

Meanwhile, the Obama Administration winds down. A few more prisoners will be released from Guantánamo before January 2017, but Zayn will not be among them. And as Wednesday’s choreographed display made clear, neither of the current contenders for the Oval Office give a damn about what happens next on our desolate island prison, so the future holds little hope.

Having tortured him, they seem to figure it is better that he be silenced and best that he be forgotten, at least until he dies. After all, that is the assurance we provided to his torturers. Then we can be great again.